LawClinic.TV

December 12, 2006

In this clip, my colleague, Cheryl Bader, and I, talk about where students often start and where they end up. As I listen, I am struck by how much we are talking about feelings and relationships and how little we have to say about rights, the law and all that. It reminds me that the clinic is just one part of law school and is best understood as part of that larger institution. Although some of my clinical colleagues may disagree, I would not want law school to be all and only the clinic or if it were, the clinic would be very different.

Our students come to us already steeped in the discourses of rights, obligations and process. The first year of law school is a powerful experience. Some think the clinic should help students unlearn first year, but I think the clinic should leaven, broaden and deepen first year. I guess I am still a very traditional law professor and lawyer. I can stress lawyer role and relationship in the clinic because my students are already thinking about rights and rules and our legal work reinforces those messages. When I teach first year, I stress the abstractions, because that is the time for them and I know my first year course, like my clinic, is just one part of the whole that makes up a legal education.

December 07, 2006

In this clip I start from the title of Malcolm Feeley's classic study of the lower criminal courts, The Process is the Punishment. First published in 1979, the book remains a defining text for anyone interested in how minor crimes are treated in America's courts. It captures a central truth for most of the clients we represent in Fordham's Criminal Defense Clinic. Whatever happens in the case, most of our clients receive their punishment before their case is resolved. The night they spend in jail before their arraignment is likely to be the only jail time that results from the case. Their repeated court appearances are likely to be all the contact they will have with the court, as so many of the cases are eventually dismissed or resolved with dispositions that result in no formal sanction.

Although I don't say this in the clip, I am not sure it is a bad thing that there is frequently no punishment beyond the process of resolving the case. Some data suggests that almost all the crime control benefits of the enforcement of minor crimes (to the degree there are crime control benefits) come from arrest, with conviction and sanctions flowing from conviction adding very little, if anything. In this era of serious collateral consequences, when people can lose their jobs, apartments or immigration status after conviction of a minor offense, letting the process be the punishment may make for more proportionate and effective punishment.

But as I go on to note in the clip, the punishment exacted by the process can be very onerous and seem illegitimate. So many of our clients could receive a summons and a predictable sanction could flow from that summons, but that is not how it is done in New York City. Many folks spend the night in jail after a minor transgression, which can shift the focus from their transgression to the system's overreaction. From a teaching standpoint, there is much to be learned from the highly charged hours my students spend with their new clients, soon after their arrest. From the policy perspective, I am not sure it is the best way to run a criminal justice system.

December 01, 2006

In this clip, Phillip Wells, Doug Cutherbertson, Cheryl Thill and my colleague, Prof. Gemma Solimene, offer reflections on the question that people I have just met at cocktail parties most commonly ask me when I tell them I am a criminal defense lawyer - how can you defend those people. I think people usually mean, how can we defend people accused of crimes, many of whom are, in fact, guilty?

Although many of us worried about that question when we first started doing the work, in my case many years ago, almost every criminal defense practitioner soon learns that clients are people in crisis, who have lots of other people working against their interests. For some of us, there is the thrill of being that person's only partisan; others are motivated by a desire to buck the authority of government officials. I have always been moved by the very human needs of the person in front of me.

I agree with Phillip. Everyone deserves an advocate. I suppose some may speculate on the psychological factors that push some of us toward defense work and some of us toward prosecution, but whatever gives rise to those differences, the system depends on vigorous lawyers on both sides. I think most people understand that intellectually, but when they first meet a criminal defense lawyer, their hearts often ask - how can you defend those people - and it is important for those of us who do the work to remember how the experience changes us.

November 28, 2006

Clinical Legal Education offers
the opportunity to learn on so many levels. In a recent postIlana Friedman talked
about some big issues in criminal justice and criminal defense practice in
America.

In this clip, Cheryl
Thill talks about a more technical
matter, the requirement in New York law that every misdemeanor charge be
supported by a sworn statement from a person with first hand knowledge. Known
in courthouse parlance as "corroboration," this procedural step looms large in
our practice in New York County Criminal Court and listening to Cheryl's
discussion reminds me how many important legal concepts are embedded in this
simple procedural requirement.

The requirement for first person
knowledge, as opposed to second hand or hearsay evidence, reflects the long
settled distrust of hearsay evidence in Anglo-American law and our broader concern about both the quality
and quantity of evidence used to prove a point. The ancient common law had
concerns about hearsay evidence - rules regulating hearsay began to firm up in
the late 17th Century, developed through the 18th and took a form familiar to
contemporary lawyers by the early 19th Century.

In our cases, New York State Law
requires that the state file a charging document with every element of the
offense supported by evidentiary facts sworn to by a person with firsthand
knowledge. Person number 1 repeating what person number 2 said about what he or
she saw is not good enough.

The legal obligation for the
prosecutor to support a criminal charge with some evidence (whatever the quality
of that evidence must be) in order to bring a case on for trial is older still,
with the grand jury (which must pass on whether there is sufficient evidence to
bring a felony case to trial) traceable to 1166, just 100 years after the Norman
Conquest of England. We have long been concerned about the burden of being
brought to trial, even if one is acquitted, and we fear the power of an accuser
to simply accuse without any substantial proof.

Cheryl also talks about the time
limits within which the prosecutor must file a corroborating affidavit. Time
limits are another ancient feature of criminal law, with statutes of
limitations, constitutional speedy trial requirements and statutory speedy trial
rights each having long pedigrees in Anglo-American law. Time limits loom very
large in our practice and in many other busy lower criminal courts in
America, where
there is often significant pressure to process a large number of cases within
strict time limits.

Although Cheryl is talking about a
rather technical point of New York State Criminal Procedure, she is also tapping
into a rich vein of learning and ancient tradition in our law. One of the
things I so enjoy about being a lawyer who teaches and practices in a legal
clinic is the opportunity to see the law from many different perspectives - in
this case from the ground and technical detail up to the heavens and the most
abstract and ancient of concerns.

November 21, 2006

Here
is Ilana Friedman, reflecting on the challenges in working in an imperfect
system. She captures a central dilemma for criminal defense lawyers. Our cases are about our client's freedom. It
can sound grandiose, but it is very powerful to stand at the portal between
freedom and incarceration - and I don't mean that as a metaphor. Heavy steel
doors, metal bars and secure facilities are part and parcel of the criminal
defense lawyer's world.

Given
what is at stake, we can be all the more frustrated with how imperfect the
legal system is. We fight for our clients, but we do it within the bounds of
the law and from within the system. In the end, we either believe in the
system, or we live very cynical lives.

I think this is a central problem for lawyers and a particularly difficult one
for criminal defense lawyers. That is why I think it is a very valuable for law
students to have the opportunity to live the role for a semester and grapple
with this and other powerful questions. Some will decide this is the right area
for them and others will decide that criminal defense work, or criminal law is
not for them, but all will have learned something very important about
themselves and about the law.

November 17, 2006

Here
are Cheryl Thill, Doug Cuthbertson and Ilana Friedman reflecting on the
connection between lawyers and politics soon after the recent election.
Cheryl and Ilana are a bit more skeptical than Doug about how strong a
connection there is between legal training and politics.

Cheryl
and Ilana see the connection as fairly weak - law school prepares students in
some respects which may cause some lawyers to be motivated to pursue politics,
while Doug suggests that the daily work of lawyers exposes them to the bigger
questions behind the laws with which they work, motivating them to pursue
politics.

I am
more inclined towards Doug's view, but Cheryl and Ilana remind me that it may
just be a lawyer's conceit. As a law professor, I would like to think we
are teaching our students about justice and how the law can make our society
better.

But
many other people are also concerned about justice and making society better. There
is a long American tradition of great skepticism about the claim that any kind
of education or background should give one a special role in exercising
authority. Those who hold that skeptical view may note that lawyers have long
been over represented at all levels of American government, but that may be
best explained by sociological analysis and may not reflect a particularly
desirable state of affairs.

As I
note, I take a different view. I think there is a deeper connection
between lawyers and politics. Lawyers are not the only people who
have thought about our aspirations for justice and equality, but the law does
provide one important lens through which we have long analyzed those
ideas.

What's
more, although many will disagree with me, in my experience as a law student
and teacher in three different law schools, law school and the legal culture
are both quite concerned with notions of justice and equality. We might
do it differently and we could certainly do it better, but so long as the law
is one of our major tools for social control and social change, I hope lawyers
will continue to step up to the plate.

November 10, 2006

In
this clip Phillip Wells tells you about how the student lawyers in the Fordham Criminal Defense Clinic
meet their clients.

One of the things
that gives that process such power is that all of our clients are in jail when
we first meet them and our first goal is to get them released. Walking out the back door of the courtroom
with a client who came in from the jail cells behind the judge's bench still
gives me a thrill.

Phillip's comments strike me as admirably
concrete and client-centered. I like the
way he recognizes the intensity of the arrest and release experience for many
clients and the ways that experience can shape a client's behavior. So many of us start out thinking that our
clients are responding primarily to us. A clinical legal education experience can be a great way of helping us
start to get past our fascination with ourselves and start thinking about
things from other perspectives.

November 08, 2006

I think this very nicely constructed clip will give you a sense of how I approach clinical teaching at the law school. I offer some thoughts about how students feel about clinical education and you see a bit of a clinic seminar class in which we are working with a simulation of a suppression hearing.

I used to think of clinical teaching as primarily focused on things I had that I was trying to pass on to my students, whether it was knowledge or modes of analysis. Over time, I have come to think of teaching more as an opportunity to accompany really talented people on a journey that I know will move and change them. I do not aspire to just go along for the ride - I mean to be a guide, and help my students get the most out of the experience they can.

Of course my job is made easier by the inherent excitement of the experiences we share, but it is also made harder by the high expectations we share for the clinic. I also teach non-clinical classes at Fordham Law School as you can see. I want all of my students to grow and remember their time with me, but I know that not every classroom experience speaks to every student. I also know that the clinic is not transformative for every student, but in my heart, I admit I think it should be.

November 03, 2006

Here are Philip Wells and Doug Cuthbertson talking about one of the big challenges of running a one semester law clinic.

We switched from mostly two semester clinics to mostly one semester clinics some years ago, a choice we made so we could offer a clinical experience to more students at the law school.

I think it was, and is, the right choice. It keeps students on the steep part of the learning curve and permits them to get a broader legal education, but as Doug and Phil note, most of our cases are not resolved in one semester. That means that clients usually work with at least two teams of students.

We are always concerned about the transition from one team to another. We need to be sure that the first team fully documents the case and there is always the need for the second team to establish the relationship anew. Of course the faculty are a constant, so we really are not starting from scratch and experience tells me that clients understand the transition and very rarely have a problem with it, but it is an issue for us.

October 31, 2006

Here are Doug Cutherbertson and Philip Wells talking about their experiences in Fordham's Criminal Defense Clinic at the midway point of the semester. Their comments capture both the predictable sequence of the casework and the unpredictable, indeed unique qualities of each individual we represent. Philip's comment captures the recurring pattern of predictable legal procedures involving always different people and facts.

That aspect of law practice informs one of my central teaching goals in clinical education. I hope to give my students a firm conceptual grounding in legal problem solving so they can focus less on their lawyering and more on the person in front of them. In my experience, technical expertise in a given area of law can be a scaffold upon which creative lawyering and close attention to the unique individual in front of us can stand. I fear that technical expertise is an end in itself for too many of us, rather than the gateway to careful, individualized professional practices.